[Congressional Record Volume 149, Number 53 (Wednesday, April 2, 2003)]
[Senate]
[Pages S4666-S4676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT
The PRESIDING OFFICER. Under the previous order, the hour of 1:30
p.m. having arrived, the Senate will now go into executive session and
resume consideration of Executive Calendar No. 21, which the clerk will
report.
The legislative clerk read the nomination of Miguel A. Estrada, of
Virginia, to be United States Circuit Judge for the District of
Columbia Circuit.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I understand the distinguished chairman is
on his way over. As we have evenly divided time and time is running, I
will begin and will yield when he arrives.
We have another in a series of cloture votes on this divisive
nomination today. Actually, nothing has changed significantly since the
leadership forced the three previous cloture votes.
I did read in the New York Times over the weekend that Mr. Estrada
spoke about the memos he wrote as being perhaps somewhat divisive.
Maybe that is why the White House does not want us to see them. The
only reason we are having these problems is the administration has
refused to bring forward the writings on which one could form an idea
whether he should have a lifetime appointment to the second highest
court in the country.
The White House has had access to all these writings and they eagerly
committed the political capital to go forward. But they don't want us
to see them. The administration remains insistent that the Senate
rubberstamp nominees without fulfilling the Senate's constitutional
advise and consent role in this most important process.
Everyone has known for a long time how to solve the impasse in the
Miguel Estrada nomination. The Democratic leader's letter pointed the
way back in early February. Some say that the administration is
proceeding this way because they do not care whether he goes through or
not. They think somehow it is a political issue. That is the problem if
this administration continues in its efforts to politicize the Federal
courts.
There has been too much politicizing. The Federal courts are not a
branch that belongs to either the Republican or Democratic party. They
are not a branch of whoever is in the White House or in control of the
Congress. They are the one independent branch of Government. They are
supposed to be above politics, outside of politics, and
[[Page S4667]]
yet in this case the White House could easily move forward with this
nomination but is choosing to keep it in limbo. Unfortunately, too many
Members are willing to dance to that tune.
Remember, it says advise and consent not advise and rubberstamp. The
administration and Mr. Estrada do not want to show Members his
writings. This is part of the work and experience that made the White
House such an eager supporter of him. The American people and their
representative ought to know how he thinks and have the best basis to
predict how he would act as a judge, whether as an ideologue or as an
impartial judge.
Past administrations--and I have been here with President Ford,
President Carter, President Reagan, former President Bush, and
President Clinton--they have all shown similar type writings to the
Senate. We had nominations of Robert Bork, William Rehnquist, Brad
Reynold, Ben Civiletti, and others. Even this administration did so for
a nominee to the Environmental Protection Agency.
We have had senior members in the Republican Party say they wish the
White House would show some cooperation, as past White Houses have, to
get forward on this. Instead, we continue being blocked by the
administration's position when we should be going forward.
Mr. DURBIN. Will the Senator yield?
Mr. LEAHY. Of course.
Mr. DURBIN. I thank the Senator for his service as ranking Democrat
on the Senate Judiciary Committee. I would like to put the Senator from
Vermont on the spot with a question.
If the White House will allow these writings that are in controversy
here by Miguel Estrada to be released to the Congress for review, and
if we are then given a chance to review them, to bring Mr. Estrada for
a hearing, if necessary, so we can ask questions, some of which he has
not answered completely before, at that point would the Senator from
Vermont personally urge the Democrats in committee to allow this
process to move forward in an orderly fashion to consideration in
committee, to a vote in the committee, and to a vote on the floor?
Mr. LEAHY. I say to my friend from Illinois, of course I would. I
have said this right along. I may or may not vote for Mr. Estrada based
on what is in the writings, but I will never give a blank check to any
President--I have not--Democrat or Republican. I want to know what is
in there. After all, there have been statements by this person's
supervisor that he did not fairly state the law in the course of his
work. We should have the basis to determine the quality of his work.
As the Senator from Illinois knows, when I was chairman of the
committee, in 17 months we certainly moved far more of President Bush's
nominees than the Republicans did when they were in the chair the
previous 17 months for President Clinton. I believe that we actually
moved more than the previous 30-month period under them. I did not
allow the secret holds they had used extensively to block President
Clinton's nominees. At times, they actually required 100 Senators to be
for somebody before they would go through it.
A former Republican leader accepted part of the blame for how the
Senate came to this, and I appreciate him doing that. He acknowledged
you filibuster a lot of different ways. The Republican majority often
defeated nominees by making sure they were never given a hearing or a
vote. I don't believe in that.
If a nominee will go through the normal process, if the White House
will stop playing games, if they will stop stonewalling, I am perfectly
willing to go forward.
Mr. DURBIN. I might say to the Senator from Vermont, if he will yield
further, in my experience in trial practice before I was elected to
Congress, one's curiosity was always raised when the party on the other
side refused to disclose a document. You had to go to court and have a
decision made by the judge in discovery as to whether they would be
required to produce the document. You naturally believed, if they were
holding back a document, then certainly it might be a document that
would compromise their position or jeopardize their position.
I would like to ask the Senator from Vermont, is it not a fact now
that because of this long delay and because of this intransigence by
the White House to release these documents, there is more and more
curiosity as to what is contained in them? Here we have a nominee who,
despite an excellent academic resume, really has little to show in
terms of legal writings or things that give us an insight into why he
should be selected for a lifetime appointment to the DC Circuit Court.
I ask the Senator from Vermont, isn't it fairly obvious at this point
that, if the White House will release these documents and start the
orderly process, then we can have a final disposition of Mr. Estrada,
just as soon as they respond?
Mr. LEAHY. I would think so, I say to my friend from Illinois. Again,
the point is the White House has had access to these papers. Surely
they did a thorough review of this nomination. Surely someone in the
administration must know what these documents contain if they are
refusing to provide them and Republican Senators are asserting that
they are ``privileged''. I would hope that no one, and certainly no one
with legal training, would assert a privilege without knowing whether
it applies. My recollection is that the administration took several
weeks to respond to our request for the documents. Surely they were not
simply ignoring our request for those weeks. I would have assumed they
were using that time to review the documents and determine what could
be produced immediately and what might require further discussion. They
want to put this young man, at 41 years old, on the second highest
court in the land. But they don't want us to know about his legal work
and judgment when he was working for the government. They are saying:
We'll nominate; you rubberstamp. I am saying it is advice and consent.
That has worked in the Constitution for all the history of this country
and will continue to work.
We had an example of internal Justice Department documents that were
the work on another of the President's controversial nominees that have
previously been produced to the Senate. At least the papers came forth.
We find that she, working for a previous Republican administration, had
strongly organized, in fact, went out of her way to help support a tax
exemption for a college that discriminated against African Americans,
discriminated against Catholics, discriminated against Mormons, took
the most radical position, but was a darling of the Republican Party.
Her nomination to a major court of appeals position by this
administration is now pending. But at least we knew of her work and at
least she could be questioned on it.
I would say to my friend from Illinois that we began this because we
were waiting for the distinguished chairman. He is here. I suggest I
reserve the remainder of my time and yield to the distinguished
chairman as I had agreed when we called off the quorum at the request
of the Republican side.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. How much time remains on both sides?
The PRESIDING OFFICER. The Senator from Utah has 15 minutes
remaining. The other side has 6 minutes 30 seconds remaining.
Mr. HATCH. Mr. President, this is the first true filibuster in
history of a circuit court of appeals nominee--the first one in
history. It just has never happened before, no matter how controversial
the nominee--and this one certainly is not controversial. They just
haven't found anything to criticize him with, and that is the problem.
The distinguished Senator from Vermont says he is not going to
rubberstamp anybody. Don't anybody worry about that. The Democrats have
not rubberstamped one of these judicial nominations of President Bush
so far. In fact, they voted against a high percentage of President
Bush's nominees.
Frankly--ask all those who have gone through this process--it is an
arduous, difficult, and in many ways a demeaning process as a result of
the way my colleagues on the other side seem to be attacking these
nominees.
The White House has been accused of political games in putting Miguel
Estrada up, and in not allowing fishing expeditions into the most
sensitive documents in the Justice Department. Those documents are the
appeal, certiorari, and amicus recommendations
[[Page S4668]]
made by people such as Mr. Estrada while they are there.
Seven living former Solicitors General have all said there is no way
that any administration should give those documents to the Senate. I
might add, four of those are Democrats, three of whom were Democratic
Solicitors General with whom Miguel Estrada worked and for whom they
had great affection. Seth Waxman, who is a great lawyer here in this
town and a partisan Democrat, basically said Estrada has every
qualification a person should have for the bench and basically said he
did a good job while at the Department.
I heard the distinguished Senator from Illinois say he has little to
show in legal writings. What about the 15 briefs he has written for the
U.S. Supreme Court? That is a lot of legal writings, more than almost
any nominee we have had here in the history of my 27 years on the
Judiciary Committee. What about all the appeal briefs he has written
and the reply briefs he has written, not only on the Supreme Court but
in the circuit courts of appeals? They have access to every one of
those. What about all the written questions they have given him? Only
two asked for them after the hearing, and then we agreed to provide him
to answer more written questions, and only one or two have asked
further written questions.
There is no desire on the part of my Democratic colleagues to learn
more about Miguel Estrada. There is a desire to find something they can
hang their hat on to stop him because he is on the fast track to the
Supreme Court, they believe. The best way they can show President Bush
they are not going to have a conservative Hispanic on the court is by
attacking Miguel Estrada, and that is what is behind this matter.
Today we are debating a historic fourth cloture vote on the
nomination of Miguel Estrada. No other Executive Calendar nominee,
judicial or nonjudicial, has ever been subjected to four cloture votes
in this body.
Let me state that a clear majority of this body supports this
nomination, as has been determined by the past three cloture votes. So
it is regrettable that a minority of Senators have followed their
script of obstructionism to prevent the Senate from concluding this
debate on this nomination and allowing the Senate to proceed to a final
vote. However, it is not surprising they have stalled this nomination.
In September of last year, a Democratic staffer on the Judiciary
Committee is quoted in The Nation magazine as saying:
Estrada is 40, and if he makes it to the circuit then he
will be Bush's first Supreme Court nominee. He could be on
the Supreme Court for 30 years and do a lot of damage. We
have to stop him now.
That, by the way, is a Democratic staffer on the Senate side.
Mr. LEAHY. Will the Senator yield? Do you have the name?
Mr. HATCH. I am not going to name names on the floor.
Mr. LEAHY. Is this one of those unnamed sources?
Mr. HATCH. Mr. President, I ask for the regular order.
The PRESIDING OFFICER. The Senator from Utah has the floor.
Mr. HATCH. It appears the real reason for the filibuster--I suggest
to the distinguished Senator, just read The Nation magazine and you can
find out for yourself. Why should I provide information to you anymore?
It appears that the real reason for this filibuster is the threat of
a Justice Estrada on the Supreme Court. Of course, I take issue with
the assertion that Mr. Estrada would do any so-called damage on any
court. In fact, I am confident that he would be a fair and unbiased
judge who would follow the law. He would not be an activist, which is
probably what this staffer meant when he said that Mr. Estrada would do
a lot of damage. But I find it ironic that this staffer knew enough
about Miguel Estrada last September to proclaim that he must be stopped
at all costs, when some of my Democratic friends insist on continuing
this filibuster because they allegedly do not know enough about his
views. Read the Nation magazine. I think the real reason for this
filibuster lies in the rest of the staffer's quote: That Mr. Estrada is
a Supreme Court caliber attorney whose ascension to the Federal bench
must be stopped now.
This unparalleled filibuster is one of many weapons of obstruction
designed to prevent the President from having his nominees fairly
considered and voted upon by the Senate. This is according to a
partisan game plan, developed and coordinated as early as April 2001,
when, according to the New York Times, Senate Democrats met in a
private retreat to forge a unified party strategy to combat the White
House on judicial nominees. I would like them to deny this. I would
like them to tell me The New York Times misquoted and didn't tell the
truth here. They can't deny it. As one participant in the meeting
stated, according to that press account, it was ``important for the
Senate to change the ground rules'' on judicial nominations.
One of the three noted liberals who coached Senate Democrats on
changing the ground rules on judicial nominations was University of
Chicago law professor Cass Sunstein. Just the other day I came across a
Yale Law Review article that Professor Sunstein co-authored in 1992
entitled The Senate, the Constitution, and the Confirmation Process.
This article advocates a confirmation process in which the Senate plays
a more aggressive and high-profile role. I found surprisingly familiar
many of the principles he propounds in that article because I have
heard a number of my Democratic colleagues also arguing for their
adoption time and again in the Judiciary Committee and on the Senate
floor.
For example, Professor Sunstein says:
[T]he criticisms of the current process are telling.
Supporters of the administration object that members of the
Senate, and private groups generally critical of the
Administration, expend enormous energy not in
disinterested inquiry but in trying to `catch' the
nominee: to find some statement in her record that reveals
a belief so extreme as to be `out of the mainstream.'
When I read this statement, I thought it sounded familiar, so I took
a look at the remarks of my colleague from New York Senator Schumer,
when he chaired a hearing in June 2001 at which he argued that a
judicial nominee's ideology should play a role in the confirmation
process.
Sure enough, here is what my good friend said:
[T]his unwillingness to openly examine ideology has
sometimes led Senators who oppose a nominee to seek out non-
ideological disqualifying factors, like small financial
improprieties from long ago, to justify their opposition.
This, in turn, has led to an escalating war of ``gotcha''
politics that, in my judgment, has warped the Senate's
confirmation process and harmed the Senate's reputation.
Professor Sunstein also argues that:
[t]he senate should place the burden of proof--with respect
to character, excellence, and point of view--on the nominee.
He continues:
In exercising its consent power, the Senate is entitled to
reject nominees simply because they have not established that
they have the requisite qualities, even if there is
considerable uncertainly on that point.
Well, as we all know, after Senator Schumer's hearing on ideology in
the confirmation process, he held a second hearing arguing Professor
Sunstein's precise point: That the burden of proving worthiness for
confirmation should be on the nominee. In fact, this is one of the
factors sustaining this filibuster: The ill-formed perception that
Miguel Estrada has not proven that he deserves to be confirmed to the
DC Circuit.
Back to Professor Sunstein. He also says:
The President, his opponents say, chooses `stealth'
nominees whom he has reason to believe are deeply
conservative, but whose views the Senate will not be able to
uncover.
This, of course, is precisely how Senator Schumer characterized Mr.
Estrada in The Nation magazine last fall. He said:
Estrada is like a Stealth missile--with a nose cone--coming
out of the right wing's deepest silo.
I have heard a number of my other Democratic colleagues join in the
chorus of labeling Mr. Estrada a stealth nominee.
Mr. President, I think I have made my point. This 1992 article
written by Cass Sunstein provided the basis for the model that some of
my Democratic colleagues are using to stall up or down votes on
President Bush's judicial nominees, including Miguel Estrada. This
filibuster is part of a coordinated attack designed to deny President
Bush's circuit nominees a seat on the Federal bench.
[[Page S4669]]
Don't get me wrong--Professor Sunstein is an unabashedly liberal law
professor, and as such it can be argued that he has carte blanche, or
even an obligation, to push the far-left envelope, which he regularly
does. But this does not mean that my Democratic colleagues have an
obligation to blindly follow him into the far-left. Some of them have
refused to do so, and I commend them for that.
For the others, I will repeat my sentiments which I stated here on
the Senate floor just a few weeks ago. This historic cloture vote
represents another opportunity for my Democratic colleagues to reverse
course. This is the time to end their dangerous obstructionist tactics
and grant Mr. Estrada the up or down vote any judicial nominee
deserves. They are free to vote against confirming him if they truly
believe that he has not answered their questions, or that his record is
incomplete without examining the Solicitor General memoranda. But they
should not continue to obstruct the will of the majority of this body
that desires to give this nominee a vote.
Mr. President, how much time remains on my side?
The PRESIDING OFFICER. The Senator from Utah has 6 minutes 10
seconds.
Mr. HATCH. Mr. President, I reserve the remainder of my time.
Mr. LEAHY. To date, there have been at least 77 editorials and op-eds
in support of the position of Democratic Senators on the nominations of
Mr. Miguel Estrada's nomination to the Court of the Appeals for D.C.
Circuit. On March 6, 2003, I placed in the Congressional Record
excerpts of the editorials and op-eds that had been published by that
date, because Republicans had been asserting that there were only a
handful of editorials or op-eds in support of our concerns. Here are
some excerpts from 24 additional editorials and op-eds expressing
concerns about Mr. Estrada's nomination, bringing the total to at least
77. This controversial nomination continues to divide, rather than to
unite, the American people.
I ask unanimous consent to print in the Record excerpts of 24 recent
editorials or op-eds, in addition to those printed last month.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Mar. 13, 2003]
Hold Firm on Estrada
[Supporters] argued that handing over Mr. Estrada's
memorandums would be a violation of privacy, although other
nominees, including Chief Justice William Rehnquist and Judge
Robert Bork, did so in their own confirmation hearings.
Supporters have also contended, shamefully, that opposition
to Mr. Estrada is anti-Latino, even though his nomination is
opposed by the Congressional Hispanic Caucus, the Mexican
American Legal Defense and Educational Fund and other leading
Latino groups. Now Republicans are attacking Democratic
senators for using a filibuster. The criticism rings hollow,
given that some Republicans making it, including the majority
leader, Bill Frist, voted to filibuster when President
Clinton nominated Richard Paez, a Mexican-American, to an
appeals court. Rather than demonizing Democratic senators,
the White House should look for common ground. In the case of
Mr. Estrada, it should respect the Senate's role in the
process by making his full record available. And going
forward, it should choose judicial nominees from the
ideological mainstream, who do not prompt the sort of bitter
partisan divisions that Mr. Estrada has.
____
[From the Connecticut Law Tribune, Mar. 24, 2003]
Nomination Battles
Because federal judgeships are for life, what is at stake
is what the law of the land will be for the next two or three
decades. That's why the continuing Senate filibuster
transcends Estrada. Its aim is to use what little Democratic
power is left to force the White House and Senate Republicans
to the table to hammer out a more bipartisan, more balanced
approach to judge-picking.
____
[From the Daily News, Mar. 31, 2003]
The Quotable Lincoln
By President Lincoln's reasoning, Mr. Estrada is not
qualified for the court appointment if his opinions are
unknown publicly. The full quotation comes to light as the
Senate Republicans vow to keep bringing up the Estrada
nomination against the opposition of all but a handful of the
Democrats. The Republicans, including both Maine senators,
have been unable to muster more than 55 of the necessary 60
votes to break the filibuster.
____
[From the Times Union, Mar. 20, 2003]
Estrada Should Answer Questions in Public
Since Mr. Estrada doesn't have experience to bolster his
candidacy, he must provide convincing evidence of his ability
to perform. If he is qualified to serve, he should step up to
the plate and tell us, in a public hearing. If not, he should
step aside and let the Senate get on with its business.
____
[From the Orlando Sentinel Tribune, Mar. 23, 2003]
Will Estrada Protect the Rights of Latinos?
At his hearing before the Senate, Estrada failed to answer
senator's questions, and he hid his views from the Senate and
the public. Because of his limited record, it was important
for Estrada to be forthcoming and give senators the
opportunity to find out more about the kind of judge he would
be; yet he chose to remain silent. . . . The little we do
know about his record is very troubling. . . . Defeating his
nomination would not send the message to Latinos that ``only
a certain kind of Latino need apply.'' On the contrary, it
would send the message that everyone in America is judged by
the same standard. If you cannot be fair and protect the
basic constitutional rights of the common person, you do not
deserve to serve in a judicial appointment, no matter what
your race or ethnicity is.
____
[From the Connecticut Law Tribune, Mar. 24, 2003]
Nominations Battles
Miguel Estrada is being treated the same way Republicans
treated Democratic nominees for years, Hispanic or otherwise.
The battle is intense because the stakes are high. At issue
is the American principle of checks and balances, and more.
Republicans already control the White House and Congress and
are now aiming for the third branch of government. Not only
will Bush likely get the chance to push the divided Supreme
Court rightward with an appointment or two. He already is
reshaping the appeals courts one level below the Supreme
Court. Because federal judgeships are for life, what is at
stake is what the law of the land will be for the next two or
three decades. That's why the continuing Senate filibuster
transcends Estrada. Its aim is to use what little Democratic
power is left to force the White House and Senate Republicans
to the table to hammer out a more bipartisan, more balanced
approach to judge-picking.
____
[From the Troy Record Editorial, Mar. 10, 2003]
Senate Judgment Wise in Estrada Nomination
In reality, a Court of Appeals judgeship is a lifetime
appointment. This means that the 39-year-old Estrada could be
making decisions from the bench for 30 or 40 years. . . .
Democrats on the Committee want to get a feel for how Estrada
will rule when the rubber meets the road, and that is
certainly fair. Is it out of the question for Estrada to let
the committee know the name of a judge he admires? Why
wouldn't he name a Supreme Court decision he disagrees with,
or approves of? These are not unreasonable questions. . . .
The Senate is right not to simply rubber stamp his
nomination.
____
[From the American Prospect, Mar. 17, 2003]
Rule Breaker: When It Comes to Helen Thomas, Miguel Estrada and Acts of
War, George W. Bush Isn't big on Convention
Then there's the tussle over judicial nominee Miguel
Estrada. Bush doesn't like the fact that Democratic senators
are filibustering Estrada's nomination. So he suggested
changing the rules to ``ensure timely up-or-down votes on
judicial nominations both now and in the future, no matter
who is the president or what party controls the Senate.''
According to the Senate's Web site, filibusters have been
around since the early days of Congress and have been popular
since the 1850s. It's hard to remember the last time a
president suggested that the Senate change one of its oldest
traditions. There have been plenty of presidents who haven't
liked congressional rules, but that doesn't mean they've
suggested changing them just to accomplish one goal.
____
[From the Times Herald-Record, Mar. 9, 2003]
How To End the Filibuster
That's not nearly as bad as the charge by some Republicans
that Democrats are opposing Estrada because he's Hispanic
and, as a result, Democrats are preventing a group of people
from achieving a milestone. Do these people ever listen to
themselves? For a host of reasons, including support of
immigration and education reform, pro-union and pro-labor
policies and a philosphy that embraces affirmative action,
the Democratic Party has enjoyed the support of a majority of
the nation's growing Hispanic community for some time. In
fact, many Hispanic groups oppose Estrada's nomination
because they do not think he understands or is sensitive to
issues and aspirations that are important to Hispanics in
America. . . . It would have been nice, then, had Clinton
been able to secure a floor vote for other highly qualified
Harvard Law School graduates whose nominations languished and
eventually died in the Senate Judiciary Committee, which was
controlled by Republicans. . . . The Senate
[[Page S4670]]
should not rubber stamp a president who wants to tilt the
court heavily to one side.
____
[From the Dayton Daily News, Mar. 14, 2003]
There's Easy Fix for Judge Holdups
President Bush has called on the Senate to permanently ban
any filibustering over judicial nominations. . . . A
president genuinely interested in a judiciary that works
won't map a strategy that allows presidents to push through
any nominee at will. Doing so allows for, even invites, an
ideological judiciary prone to extremes. It undermines merit
appointments in favor of lifetime appointments handed out
like so many political plums.
____
[From the Sarasota Herald-Tribune, Mar. 16, 2003]
Power, Not Ethnicity, at Issue
The Republican strategy is to win his approval by charging
that opponents are motivated by prejudice. . . . It is also a
totally despicable tactic, designed to avoid discussion of
the reason most Democrats oppose Estrada. This reason has
nothing to do with Estrada's ethnicity or legal ability, but
rather the drive by Bush and like-minded Republicans to pack
the federal courts from top to bottom with radical rightists.
Not, mind you, conservatives interested in preserving our
institutions and values but radical activists who want to
uproot many of the laws and court decisions of the last 50
years. Estrada would be such a judge. . . Senators who try to
keep that from happening deserve the thanks of the American
people, not the calumny heaped on them by a president who
last week showed his lack of understanding of the roles of
the separate branches of government by pressuring the Senate
to change its rules for debate and allow a one-vote
majority to ramrod presidential appointments through the
Senate.'')
____
[From the Copley News Service, Mar. 20, 2003]
Wise Words for the Senate
Republicans like to blame Democratic stalling for judicial
vacancies. But that starts the book in the middle. The early
chapters, which the GOP ignores, deal with Republican
inaction on Clinton's nominees.
____
[From the Capital Times, Mar. 11, 2003]
Blocking a Bad Choice
The White House has stonewalled the request for the papers
and has refused to allow Estrada to participate in a public
hearing where he could be asked further questions. Those
hardball tactics have upset even moderate and conservative
members who might be inclined to support Estrada. Daschle and
the Democrats are right on this one. Unless Estrada and the
White House are willing to cooperate with the confirmation
process, the Senate need not consider this nomination.
____
[From the Reno Gazette Journal, Mar. 11, 2003]
Your Turn: Judicial Candidate Should Answer Questions
When asked his views on civil rights, women's rights,
environmental protections, workers' rights, Mr. Estrada said
he had no views. When asked which Supreme Court justice he
would emulate, Mr. Estrada said he couldn't answer. The
service promoting Mr. Estrada--the White House--surely asked
these questions before nominating him. To be sure, they got
the answers . . . . Other nominees have asked similar
questions. They are provided the same type of documents. . .
. Would you hire him for the job? Would you hire him if you
couldn't fire him? Of course not.
____
[From the Orlando Sentinel, Mar. 16, 2003]
Senate Needs More Information on Estrada
[T]he issue we are debating, the relative roles of the
executive and legislative, is not a trivial issue. It goes to
the heart, as John Adams said, of the stability of
government, because it goes to the independence of the
judiciary. . . . I believe we are being called to resist an
effort to inappropriately utilize executive power and to
exclude the legislative role in the appointment of federal
judges.
____
[From the San Antonio Express, Mar. 13, 2003]
An OK For Estrada Won't Help Nation
We should expect more than a federal judicial nominee, and
we should not set a precedent that would allow future
presidents and nominees to act without regard for the
Senate's role in a system of checks and balances.
____
[From the Chattanooga Times/Chattanooga Free Press, Mar. 12, 2003]
The Case Against Estrada
Senate Democrats are hanging tough against President Bush's
nomination of Miguel Estrada for a federal appellate
judgeship. Wish them well. They are doing righteous work. The
Constitution obliges the Senate to advise and consent on
judicial appointments. This is the advise part and, no, this
meltdown does not have anything to do with who is pro- or
anti-Hispanic, as Republicans are charging in a campaign that
is cynical even by Washington standards. There is a very
serious issue at the core of this dispute--nothing less than
the fundamental nature of the federal judiciary--and the
attempt to defame opposition to Estrada as anti-Hispanic
prejudice is absurd on its face.
____
[From the Sarasota Herald-Tribune, Mar. 16, 2003]
Power, Not Ethnicity, at Issue
The Republican strategy is to win his approval by charging
that opponents are motivated by prejudice. This is a powerful
weapon in states with heavy Mexican or Cuban populations. It
is also a totally despicable tactic, designed to avoid
discussion of the reason most Democrats oppose Estrada. This
reason has nothing to do with Estrada's ethnicity or legal
ability, but rather the drive by Bush and like-minded
Republicans to pack the federal courts from top to bottom
with radical rightists. Not, mind you, conservatives
interested in preserving our institutions and values but
radical activists who want to uproot many of the laws and
court decisions of the last 50 years. Estrada would be such a
judge. At least that is a fair assumption based on the record
of the Senate committee hearing on his confirmation. He
wasn't willing to offer his views on many of the most
pertinent and controversial constitutional questions of
concern to courts, Congress and the public. He declined to
make available memoranda he wrote for the office of solicitor
general when he worked there. The solicitor general has
provided such documents in other confirmation hearings,
including those of Rehnquist, Bork and Esterbrook.
____
[From the New Republic, Apr. 7, 2003]
Private Opinion
One reason Senate Democrats haven't been swayed by these
arguments is that they're really not true: Democratic
researchers have unearthed records from at least five
judicial-confirmation hearings in which government legal
memoranda were delivered to the Senate. Their favorite
example is the Justice Department's release of memos during
Robert Bork's 1987 confirmation battle, written by a lawyer
in the solicitor general's office who held precisely the same
job as Estrada.
____
[From the Chicago Sun Times, Mar. 14, 2003]
If Estrada Thinks That Being Latino is Enough To Get Him Confirmed,
He's in for a Rude Awakening
Bush obviously wants to score political points with Latino
voters . . . Latinos deserve and demand better. Estrada may
be well-qualified, but so are other Latinos whose legal
writings are not being guarded as if they were state secrets.
Bush may be able to get Congress to pass a bill without
allowing it to be read first, but the Senate should not
abdicate its constitutional obligation to give its advice and
consent on these lifetime appointees. Bush's political stock
is sinking, and Latino political stock is rising. The way I
see it, Bush needs us more than we need him. So Bush should
nominate someone most Latinos can live with, be proud of and
support, or no one at all. Time is on our side. Bush doesn't
get it: Not just any Latino judge will do.
____
[From the Copley News Service, Mar. 6, 2003]
The Decision of a Lifetime
Miguel Estrada, along with the White House and Republican
Senate leadership, would do well to take notice. They
complain that the Democrats seek too much information as
their price for putting Estrada's nomination to a vote. . . .
Under White House coaching, perhaps, Estrada proved strangely
tight-lipped. Inasmuch as he has not served a previous
judgeship, there was no ``paper trail'' by which to gauge the
man's legal philosophy.
____
[From the Houston Chronicle, Mar. 16, 2003]
Oh, No, Ideological Judges; Say It Isn't So
Estrada is bright and far right. Just how far right is a
question that the Bush administration doesn't want to answer.
The White House is refusing to let senators see memos Estrada
wrote while working in the solicitor general's office and
that would shed plenty of light on the issue. Instead,
Republicans are offering a second Estrada appearance before
the Judiciary Committee. Judging by Estrada's lock-jawed
performance last September, it would be a gigantic waste of
time (which, of course, the White House knows). There is a
common theme in Estrada's and Owen's attempts to get on the
circuit court bench. It involves, to put it mildly, evasion
and equivocation.
____
[From the Ventura County Star, Mar. 16, 2003]
What Do We Know About Judicial Nominee?
Judges are supposed to be able to look at attorney's
arguments with impartiality and determine which side has a
stronger case within the letter and spirit of the law. To be
effective and just, the judiciary must be neither liberal nor
conservative. The judiciary must be independent, concerned
only with the integrity of law. That's a high ideal and, of
course, nearly impossible to reach, but it's what we should
be reaching for. The fact is we have no idea if Mr. Estrada
is capable of impartiality, and he's not willing to discuss
it.
____
[From the Houston Chronicle, Mar. 7, 2003]
Yakety, Yak--Keep Talking Senators
So undemocratic, wail the Republicans desperate to get on
with a vote on the nomination of Miguel Estrada to the U.S.
Circuit Court of Appeals for the District of Columbia before
anyone can find out how right-wing the former Justice
Department official
[[Page S4671]]
might actually be. Some of these Republicans are the same
people--and are certainly of the same party--who over the
years have attempted to talk to death many bills and
nominations.
Additionally, here is an excerpt of an additional news article that
is noteworthy for its assessment of the refusal of the White House to
release the documents requested, despite the precedent and despite the
interest of some Republican Senators in doing so:
[From the Weekly Standard, Mar. 17, 2003]
Filibuster Si, Estrada No!
The White House refused . . . access to Estrada's working
papers. Period. This adamantine posture, in the eyes of some
in Senate GOP leadership circles, handcuffed Frist. ``There's
some frustration,'' said a top GOP leadership aide. ``From
the very beginning we told them that was the only way out and
a face-saver for everyone. But it came down to the fact
that no one on the White House or Justice team wanted to
walk into the Oval Office and say to the president, ``You
might have to give up these memos.'' The administration's
position on the memos reflects its deeply held ethic of
aggressively defending executive branch prerogatives.
Though the White House has never characterized the Estrada
matter as one of executive privilege ... it falls into the
broad category of executive branch muscularity. And while
most Republicans generally support this posture, some Bush
allies on and off Capitol Hill have come to question the
administration's fastidiousness in the Estrada fight.
In addition, there have been dozens and dozens and dozens of letters
to the editor published in opposition to editorials supporting the
Republican position on this nomination. Here is just one sample of
those many letters from citizens across the country:
[From the Washington Post, Mar. 20, 2003]
Behind the Estrada Filibuster
The depth of Mr. Estrada's sentiments on issues facing the
federal courts seems to be known only to the far-right
members of the legal community who support him and to the
Bush administration. The question is whether the Senate,
which has an equal say in whether Mr. Estrada will sit on the
U.S. Court of Appeals for the D.C. Circuit, has an equal
right to the information, including Justice Department
memorandums, that is available to the administration. It is
far from extortionate that senators not be forced to vote
without the information the administration holds.
The PRESIDING OFFICER. Who yields time?
The Senator from Vermont.
Mr. LEAHY. Mr. President, I try to keep a straight face when I hear
my good friend, the distinguished Senator from Utah, speaking, but it
is hard. He has been able to master the ability to look stern and self-
righteous, as he has throughout a recitation of the revisionist history
here.
The question of precedent? The Republicans joined the filibusters of
Stephen Breyer to the First Circuit, Judge Rosemary Barkett to the
Eleventh Circuit, Judge H. Lee Sarokin to the Third Circuit, Judge
Richard Paez to the Ninth Circuit, and Judge Marsha Berzon to the Ninth
Circuit. We had to have cloture votes on all but one of these and on
several others.
But as the former Republican leader admitted--and I commend him for
this--they did not have to go to filibusters on most of these because
they never brought them up at all. They never had a hearing on them.
They never had a vote on them in committee or anywhere else. In effect,
they had a filibuster of one. If any one Republican Senator objected to
any one of President Clinton's nominees, or just a few, the caucus
would make the determination they would never get a hearing. The
distinguished chairman at that time would not give them a hearing. They
would not get a vote. It was only if the caucus decided that they would
be allowed to go forward would they even get a vote.
So it begs credulity to hear this kind of sophistry on the Senate
floor and the nature of a ``filibuster'' being constantly redefined.
They would not allow them to come to a vote at all.
During the 17 months when we controlled the Senate Judiciary
Committee, we confirmed 100 of President Bush's nominees. We had
hearings on 103. We voted down 2. We confirmed 100. There was no
similar period of time when President Clinton was in office and the
Republicans were in control that they passed anywhere near as many
judges for President Clinton.
I wonder if I could have order just for the sake of precedent.
The PRESIDING OFFICER. The Senate will be in order.
The Senator from Vermont.
Mr. LEAHY. We moved them through. And we got rid of the anonymous
holds. We got rid of the secret holds. I will explain in greater
detail.
Mr. President, the Republican leadership in the Senate has chosen
today for another in a series of cloture votes on this divisive
nomination. Nothing has significantly changed since it forced the three
previous cloture votes. The administration's obstinacy continues to
impede progress to resolve this matter. The administration remains
intent on packing the Federal circuit courts and on insisting that the
Senate rubber stamp its nominees without fulfilling the Senate's
constitutional advise and consent role in this most important process.
The White House could have long ago helped solve the impasse on the
Estrada nomination by honoring the Senate's role in the appointment
process and providing the Senate with access to Mr. Estrada's legal
work. Past administrations have provided such legal memoranda in
connection with the nominations of Robert Bork, William Rehnquist, Brad
Reynolds, Stephen Trott and Ben Civiletti, and even this administration
did so with a nominee to the Environmental Protection Agency. In my
statement in connection with the last cloture vote I outlined
additional precedent for sharing the requested materials with the
Senate as did Senator Kennedy.
We have the statement of Attorney General Robert H. Jackson, who
later became one of our finest Supreme Court Justices, when he wrote an
Attorney General Opinion in 1941 acknowledging that among the occasions
when exceptions should be made and Executive department files would be
produced to the Congress would be confirmations. As Attorney General
Jackson noted:
Of course, where the public interest has seemed to justify
it, information as to particular situations has been supplied
to congressional committees by me and by former Attorneys
General. For example, I have taken the position that
committees called upon to pass on the confirmation of persons
recommended for appointment by the Attorney General would be
afforded confidential access to any information that we
have--because no candidate's name is submitted without his
knowledge and the Department does not intend to submit the
name of any person whose entire history will not stand light.
I mentioned the additional example of similar materials that were
provided to Congress in 1982 by the Reagan administration when the
Senate Finance Committee held a hearing to consider legislation to deny
federal tax-exempt status to private schools practicing racial
discrimination. A number of Justice Department memoranda, as well as
communications between high-level officials, were turned over by the
Reagan administration to the Senate Finance Committee in connection
with the hearing, just months after the documents were first written.
The issues at that hearing reveal that some of the documents turned
over were much more sensitive than those requested of Mr. Estrada, but
they were still provided to Congress by the Reagan administration.
The documents turned over to the Senate included:
Letters from Representative Trent Lott to Secretary Regan, IRS
Commissioner Egger, and Solicitor General Lee, urging change in the
administration's position on Bob Jones; memorandum from Associate
Deputy Attorney General Bruce Fein to Deputy Attorney General Edward
Schmults, advising Schmults on private schools; memorandum from Carolyn
Kuhl, Special Assistant to the Attorney General, to Ken Starr, noting
Reagan/Bush campaign statements on private schools; memorandum from
Peter Wallison, Treasury General Counsel, to Secretary Regan briefing
him on meeting with Representative Lott; memorandum from Treasury
General Counsel Wallison to Deputy Secretary McNamar and Secretary
Regan on Government's position in Bob Jones case; memorandum from Civil
Rights Division Head, William Bradford Reynolds, to Attorney General
Smith justifying changes in administration's position on Bob Jones;
memorandum from Treasury Assistant Secretary for Public Affairs, Ann
McLaughlin, to Deputy Secretary McNamar on ``press strategy'' for
releasing Bob Jones decision; memorandum from IRS Chief Counsel Gideon
to Treasury Deputy General Counsel Government's statement in
[[Page S4672]]
Bob Jones; letter from IRS Chief Counsel Gideon to Civil Rights
Division Head Reynolds on formulation of Government's statement in Bob
Jones; and memorandum from Assistant Attorney General Theodore Olson,
Office of Legal Counsel, to Attorney General Smith and Deputy Attorney
General Schmults responding to the analysis in Reynolds' memo on Bob
Jones.
In 1982, the Republican administration at that time released to the
Senate documents that included internal memoranda among high-level
Justice Department officials, inter-agency communications, and
documents relating to the government's position in an important Supreme
Court case. They also included letters to the Solicitor General.
Moreover, the Reagan administration turned over these documents
within months after being written, and no harm was done to the workings
of the Justice Department or the administration. The Bush
administration is claiming that it is unprecedented to turn over such
documents--and that the release of documents written by Mr. Estrada 6
to 10 years earlier would irreparably harm the government. I urge the
administration and Republican Senators to consider this additional
precedent.
I also noted how in 2001, this White House agreed to give access to
memoranda written by Jeffrey Holmstead, nominated to be an Assistant
Administrator of the Environmental Protection Agency. The Senate
Committee on Environment and Public Works requested memoranda from
Holmstead's years of service in the White House counsel's office under
former President Bush. In particular, the Committee was interested in
materials related to Holmstead's handling of an amendment to the Clean
Air Act and other environmental issues. In the summer of 2001, the Bush
administration resolved an impasse with the Committee over the
nomination by permitting Committee staffers to review memoranda that
Holmstead wrote while in the White House counsel's office. In sum, the
administration allowed access to documents from the White House
counsel's office--a more sensitive post than the one Mr. Estrada held
when he was in the Department of Justice.
So, despite this administration's continued insistence on
confidentiality, it has turned over, allowed access or worked to reach
an accommodation on access to documents similar to those requested in
connection with the Estrada nomination in other cases and for other
committees. In the matter of the Estrada nomination, the question
before the Senate concerns a lifetime appointment to the second-highest
court in the land.
The former Republican leader accepted ``part of the blame'' for how
the Senate has come to consider judicial nominations. I appreciate that
because it is one of the few times a Republican Senator has accepted
responsibility for what happened during the years in which the
Republican majority in the Senate blocked and delayed so many of
President Clinton's judicial nominees. The Senator from Mississippi
also acknowledged that ``you filibuster a lot of different ways.'' I
thank the Senator from Mississippi for trying to be constructive and
for suggesting that ``something can be worked out'' on the request for
Mr. Estrada's work papers from the Department of Justice.
A recent edition of The Weekly Standard, a report suggests that other
Senate Republicans, ``several veteran GOP Senate staffers'' and ``a top
GOP leadership aide'' asked the White House to show some flexibility
and to share the legal memoranda with the Senate to resolve this
matter, but they were rebuffed. It is regrettable that the White House
will not listen to reason from Senate Democrats or Senate Republicans.
If they had, there would be no need for this cloture vote. The White
House is less interested in making progress on the Estrada nomination
than in trying to score political points and to divide the Hispanic
community.
The real ``double standard'' here is that the President selected Mr.
Estrada based in large part on his work for four and a half years in
the Solicitor General's Office as well as for his ideological views,
but the Administration says that the Senate may not examine his written
work from the office that would shed the most light on his views. The
White House says that the Senate should not consider the very ideology
the White House took into account in selecting a 41-year-old for a
lifetime seat on the country's second-highest court. Another double
standard at work here is that this is a nominee who is well known for
having very passionate views about judicial decisions and legal policy
and is well known for being outspoken, and yet he has refused to share
his views with the very people charged with evaluating his nomination.
It seems to be a perversion of the constitutional process to require
the Senate to stumble in the dark about his views, when he shares his
views quite freely with others and when this Administration has
selected him for the privilege of this high office, and for life, based
on those views.
Just this past weekend, a story in The New York Times reported that
during his nomination hearing which I scheduled and Senator Schumer
chaired last September, ``Mr. Estrada took what is often called `the
judicial fifth,' declining to answer many questions by saying that he
could not comment on issues that might come before him should he be
confirmed.'' The report correctly continued: ``It is a common approach
for judicial nominees, but Mr. Estrada was more reticent than most.''
The report also notes that: ``Mr. Estrada gave a hint that what the
memorandums might disclose was his impatient manner when he told the
committee he might have harshly dismissed some arguments by junior
lawyers.'' Our review of the requested documents would end the mystery
and speculation.
One of the most disconcerting aspects of the manner in which the
Senate is approaching these divisive judicial nominations is what
appears to be the Republican majority's willingness to sacrifice the
constitutional authority of the Senate as a check on the power of the
President in the area of lifetime appointments to our federal courts.
It should concern all of us and the American people that the Republican
majority's efforts to re-write Senate history in order to rubber stamp
this White House's federal judicial nominees will cause long-term
damage to this institution, to our courts, to our constitutional form
of government, to the rights and protections of the American people and
to generations to come.
Republicans are now willing to breach the 24-year-old rule of the
Judiciary Committee that had always protected the right of the minority
to debate a matter. Republicans have now established a double standard
with respect to the opposition of home-state Senators. If the
opposition to a judicial nominee is that of a Republican home State
Senator to a nominee of a Democratic President, it is honored and no
hearing may go forward. But if the opposition is to a judicial nominee
of a Republican President by a Democratic home State Senator, well that
is too bad and the Republican majority does not choose to defer or care
or honor that objection.
The White House is using ideology to select its judicial nominees but
is trying to prevent the Senate from knowing the ideology of these
nominees when it evaluates them. It was not so long ago when then-
Senator Ashcroft was chairing a series of Judiciary Committee hearings
at which Edwin Meese III testified:
I think that very extensive investigations of each
nominee--and I don't worry about the delay that this might
cause because, remember, those judges are going to be on the
bench for their professional lifetime, so they have got
plenty of time ahead once they are confirmed, and there is
very little opportunity to pull them out of those benches
once they have been confirmed--I think a careful
investigation of the background of each judge, including
their writings, if they have previously been judges or in
public positions, the actions that they have taken, the
decisions that they have written, so that we can to the
extent possible eliminate people who would turn out to be
activist judges from being confirmed.
Timothy E. Flanigan, an official from the administration of the
President's father, and who more recently served as Deputy White House
Counsel, helping the current President select his judicial nominees,
testified strongly in favor of ``the need for the Judiciary Committee
and the full Senate to be extraordinarily diligent in examining the
judicial philosophy of potential nominees.'' He continued:
[[Page S4673]]
In evaluating judicial nominees, the Senate has often been
stymied by its inability to obtain evidence of a nominee's
judicial philosophy. In the absence of such evidence, the
Senate has often confirmed a nominee on the theory that it
could find no fault with the nominee.
I would reverse the presumption and place the burden
squarely on the shoulders of the judicial nominee to prove
that he or she has a well-thought-out judicial philosophy,
one that recognizes the limited role for Federal judges. Such
a burden is appropriately borne by one seeking life tenure to
wield the awesome judicial power of the United States.
Now that the occupant of the White House no longer is a popularly-
elected Democrat but a Republican, these principles seem no longer to
have any support within the White House or the Senate Republican
majority. Fortunately, our constitutional principles and our Senate
traditions, practices and governing rules do not change with the
political party that occupies the White House or with a shift in
majority in the Senate.
The White House, in conjunction with the new Republican majority in
the Senate, is purposeful in choosing these battles over judicial
nominations. Dividing rather than uniting has become their modus
operandi. The decision by the Republican Senate majority to focus on
controversial nominations says much about their mistaken priorities.
The Republican majority sets the agenda and they schedule the debate,
just as they have again here today.
I have served in the Senate for 29 years, and until recently I have
never seen such stridency on the part of an administration or such
willingness on the part of a Senate majority to cast aside tradition
and upset the balances embedded in our Constitution, in order to expand
presidential power. What I find unprecedented are the excesses that the
Republican majority and this White House are willing to indulge to
override the constitutional division of power over appointments and
longstanding Senate practices and history. It strikes me that some
Republicans seem to think that they are writing on a blank slate and
that they have been given a blank check to pack the courts.
They show a disturbing penchant for reading the Constitution to suit
their purposes of the moment rather than as it has functioned for more
than 200 years to protect all Americans through its checks and
balances.
The Democratic Leader pointed the way out of this impasse again in
his letter to the President on February 11. It is regrettable that the
President did not respond to that reasonable effort to resolve this
matter. Indeed, the letter he sent last week to Senator Frist was not a
response to Senator Daschle's reasonable and realistic approach, but a
further effort to minimize the Senate's role in this process by
proposing radical changes in Senate rules and practices to the great
benefit of this Administration.
A distinguished senior Republican Senator saw the reasonableness of
the suggestions that the Democratic leader and assistant leader have
consistently made during this debate when he agreed on February 14 that
they pointed the way out of the impasse. Regrettably, his efforts and
judgment were also rejected by the administration.
The Supreme Court, in an opinion authored last year by none other
than Justice Scalia, one of this President's judicial role models,
instructs that judicial ethics do not prevent candidates for judicial
office or judicial nominees from sharing their judicial philosophy and
views.
With respect to ``precedent,'' Republicans not only joined in the
filibuster of the nomination of Abe Fortas to be Chief Justice of the
United States Supreme Court, they joined in the filibuster of Stephen
Breyer to the First Circuit, Judge Rosemary Barkett to the Eleventh
Circuit, Judge H. Lee Sarokin to the Third Circuit, and Judge Richard
Paez and Judge Marsha Berzon to the Ninth Circuit. The truth is that
filibusters on nominations and legislative matters and extended debate
on judicial nominations, including circuit court nominations, have
become more and more common through Republicans' own actions.
Of course, when they are in the majority Republicans have more
successfully defeated nominees by refusing to proceed on them and have
not publicly explained their actions, preferring to act in secret under
the cloak of anonymity. From 1995 through 2001, when Republicans
previously controlled the Senate majority, Republican efforts to defeat
President Clinton's judicial nominees most often took place through
inaction and anonymous holds for which no Republican Senator could be
held accountable. In effect, these were anonymous ``filibusters.''
Republicans held up almost 80 judicial nominees who were not acted
upon during the Congress in which President Clinton first nominated
them, and they eventually defeated more than 50 judicial nominees
without a recorded Senate vote of any kind, just by refusing to proceed
with hearings and committee votes.
Beyond judicial nominees, Republicans also filibustered the
nomination of executive branch nominees. They successfully filibustered
the nomination of Dr. Henry Foster to become Surgeon General of the
United States in spite of two cloture votes in 1995. Dr. David
Satcher's subsequent nomination to be Surgeon General also required
cloture but he was successfully confirmed.
Other executive branch nominees who were filibustered by Republicans
include Walter Dellinger's nomination to be Assistant Attorney General,
and two cloture petitions were required to be filed and both were
rejected by Republicans. In this case we were able finally to obtain a
confirmation vote after an elaborate effort, and Mr. Dellinger was
confirmed to that position with 34 votes against him. He was never
confirmed to his position as Solicitor General because Republicans had
made clear their opposition to him. In addition, in 1993, Republicans
objected to a number of State Department nominations and even the
nomination of Janet Napolitano to serve as the U.S. Attorney for
Arizona, resulting in cloture petitions.
In 1994, Republicans successfully filibustered the nomination of Sam
Brown to be an Ambassador. After three cloture petitions were filed,
his nomination was returned to President Clinton without Senate action.
Also in 1994, two cloture petitions were required to get a vote on the
nomination of Derek Shearer to be an Ambassador. And it likewise took
two cloture petitions to get a vote on the nomination of Ricki Tigert
to chair the FDIC. So when Republican Senators now talk about the
Senate Executive Calendar and presidential nominees, they must be
reminded that they recently filibustered many, many qualified nominees.
Nonetheless, in spite of all the intransigence of the White House and
all of the doublespeak by some of our colleagues on the other side of
the aisle, I can report that the Senate has moved forward to confirm
115 of President Bush's judicial nominations since July 2001. That
total includes 15 judges confirmed so far this year, including two
controversial nominees to the circuit courts.
Those observing these matters might contrast this progress with the
start of the 106th Congress in which the Republican majority in the
Senate was delaying consideration of President Clinton's judicial
nominees. In 1999, the first hearing on a judicial nominee was not
until mid-June. The Senate did not reach 15 confirmations until
September of that year. Accordingly, the facts show that Democratic
Senators are being extraordinarily cooperative with a Senate majority
and a White House that refuses to cooperate with us. We have made
progress in spite of that lack of comity and cooperation.
We worked hard to reduce federal judicial vacancies to the lowest
level it has been in more than seven years. That is an extremely low
vacancy number based on recent history and well below the 67 vacancies
that Senator Hatch termed ``full employment'' on the federal bench
during the Clinton administration.
It is unfortunate that the White House and some Republicans have
insisted on this confrontation rather than working with us to provide
the needed information so that we could proceed to an up-or-down vote.
Some on the Republican side seem to prefer political game playing,
seeking to pack our courts with ideologues and leveling baseless
charges of bigotry, rather than to work with us to resolve the impasse
over this nomination by providing information and proceeding to a fair
vote.
I was disappointed that Senator Bennett's straightforward colloquy
with
[[Page S4674]]
Senator Reid and me on February 14, which pointed to a solution, was
never allowed by hard-liners on the other side to yield results. I am
disappointed that all my efforts and those of Senator Daschle and
Senator Reid have been rejected by the White House. The letter that
Senator Daschle sent to the President on February 11 pointed the way to
resolving this matter reasonably and fairly. Republicans would
apparently rather engage in politics.
Republican talking points will undoubtedly claim that this is
``unprecedented''. They will ignore their own recent filibusters
against President Clinton's executive and judicial nominees in so
doing. The only thing unprecedented about this matter is that the
administration and Republican leadership have shown no willingness to
be reasonable and accommodate Democratic Senators' request for
information traditionally shared with the Senate by past
administrations. That this is the fourth cloture vote on this matter is
an indictment of Republican intransigence on this matter, nothing more.
What is unprecedented is that there has been no effort on the
Republican side to work this matter out as these matters have always
been worked out in the past. What is unprecedented is the Republican
insistence to schedule cloture vote after cloture vote without first
resolving the underlying problem caused by the administration's
inflexibility.
I urge the White House and Senate Republicans to end the political
warfare and join with us in good faith to make sure the information
that is needed to review this nomination is provided so that the Senate
may conclude its consideration of this nomination. I urge the White
House, as I have for more than two years, to work with us and, quoting
from a recent column by Thomas Mann of The Brookings Institute, to
submit ``a more balanced ticket of judicial nominees and engag[e] in
genuine negotiations and compromise with both parties in Congress.''
The President promised to be a uniter not a divider, but he has
continued to send us judicial nominees that divide our nation and, in
this case, he has even managed to divide Hispanics across the country.
The nomination and confirmation process begins with the President, and
I urge him to work with us to find a way forward to unite, instead of
divide, the nation on these issues.
Mr. President, does the Senator from Massachusetts wish the remainder
of my time?
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I thank my friend from Vermont for making
very plain for the record and to the American people exactly what has
happened over the last period of time. As he has pointed out, there
have been more than 100 judges who have been recommended by President
Bush, many of them pro-life, which have been favorably considered by
this body.
It was not the Members on this side who have changed the rules. The
fact is, it has been this administration's attempt to shape the Federal
judiciary. And as the constitutional debates showed so clearly, there
was to be a balance.
Initially, during the Constitutional Convention, the Senate of the
United States was to be the sole namer of Federal judges. It was only
at the end that that was to be a shared responsibility.
There are some who just want us to rubberstamp whatever the President
recommends. We do not believe that is what our Founding Fathers
intended us to do, as bearing responsibility for the Federal judiciary.
The fact remains, this nominee is known only to the administration,
but not to the Judiciary Committee or the American people. They know
how he stands. They have understandings of all of his positions. But
the Judiciary Committee and the American people do not. That is what is
being asked of now.
There have been other times in our history where we have had nominees
who did not respond to questions, but they had written documents, and
they had articles, speeches, and other decisions that reflected their
judicial philosophy. This does not exist here. This is a unique,
special situation. And the Senator from Vermont has stated time in and
time out over the course of the debate the reasons for it. He should be
supported on it. I stand with him. I stand with the institution, the
Senate, that says to be able to exercise our responsibility in advice
and consent, we ought to be exercising balanced judgment based on the
views of the nominee and his views of the Constitution of the United
States. We have not received his views on it. And he refused to give
it. Nor do we understand from past writings, statements, or other
positions what his views are. And the American people are entitled to
it.
Mr. President, we must be very clear about what is at stake in this
debate over the nomination of Miguel Estrada to the second highest
court in the land. Confirming Mr. Estrada to the DC Circuit would give
a major victory to the Republican drive to pack the Federal courts with
judges who are hostile to civil rights, workers' rights, and many other
basic guarantees that define the rights and liberties of all our
citizens.
Confirming him would also deal a blow to the Senate's advice and
consent role in the selection of federal judges. This role is among the
most important of the checks and balances that make our government
work. It has ensured that whoever is in the White House cannot use
their short term in power to pack the courts by giving lifetime
appointments to judges who will decide cases for years in a biased way.
As we all know, the debates at the constitutional convention make
clear that the Senate has a very important role in the selection of
judges. In fact, the power initially was to rest solely with the
Senate. Although now the power to nominate rests with the President, it
is clear that the Senate's advice and consent role is a substantive
role, and a critical role. As Alexander Hamilton said in Federalist No.
77:
If by influencing the President meant restraining him, this
is precisely what must have been intended.
The role of the Senate is vital to ensuring a strong and independent
judiciary that will protect citizens' rights. When Republicans try to
force the Senate to confirm Mr. Estrada without any significant
information about him, they are attacking the role of the Senate and
undermining this important constitutional provision.
Despite a growing and disturbing trend during this administration, of
giving the Senate less and less information about judges, the Senate
has made clear our position that we need this information to fulfill
our constitutional role. We have had many nominees who were not
particularly forthcoming in their committee hearing about their views
on certain topics. But we typically had a large written record to help
us understand those nominees' approach to judging. Often, the Senate
attempted in good faith to accommodate the President and review the
record as it was given to us. In other cases, if a nominee had only
very little record to examine, we could rely on their answers at their
hearing to give meaningful advice and consent.
Mr. Estrada represents the extreme of this trend. At his hearing, he
was silent on important issues that would help us determine what kind
of judge he would be. He does not have a written record to review. The
one thing that would help us is the body of work by Mr. Estrada at the
Justice Department. But the White House will not turn these documents
over, despite the fact that they have turned over similar documents for
other nominees in the past.
Confirming Miguel Estrada on this record would not only undermine the
Senate's important advice and consent role, it would also threaten the
rights of millions of Americans who are affected by the judges of the
DC Circuit.
Unless we preserve this important role, the independence of the
Federal courts will be lost. And it is this independence of the
judicial branch from the executive and legislative branches that gives
the Federal courts an indispensable role in protecting and upholding
the basic rights guaranteed by the Constitution.
In defending the role of the Senate in confirming judicial nominees,
we are also protecting the role of the Federal courts in our
constitutional form of government. It is our responsibility to defend
both of these important aspects of our democracy, and we intend to
continue to do so. I urge my colleagues to vote against cloture today.
[[Page S4675]]
Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Utah has 6 minutes 7 seconds.
Mr. HATCH. Mr. President, how much time remains on the other side?
The PRESIDING OFFICER. The other side has 1 minute 22 seconds.
The Senator from Utah.
Mr. HATCH. Mr. President, I think the Senator is correct to say that
opponents have a right to feel the way they do, but they do not have a
right constitutionally to filibuster a judicial nominee, in my opinion.
And they can vote against this nominee if they want to. If they feel
that deeply about their points of view, they ought to vote against the
nominee, but they should not use some phony fishing expedition request,
knowing that no administration can give up these documents because they
are the most privileged documents in the Justice Department. And the
former Democrat Solicitors General who are alive say that.
I talked to the current Solicitor General, and he said there is no
way they can give those documents up. It would ruin the work of the
people's attorney, the Solicitor General. And they know that. So that
is just a phony excuse to be able to try and stop this nominee.
By the way, with regard to what the distinguished Senator from
Vermont said--he brought up that certain nominees Stephen Breyer,
Rosemary Barkett, Richard Paez, and Marsha Berzon were filibustered.
Not one of them was filibustered. He brought up they were not
confirmed, but they were all confirmed. There has never been a judicial
nominee to the circuit court of appeals in this country stopped by a
filibuster--never--until this one. And, as far as I am concerned, this
one is not going to be stopped either, if we do what is right.
And, of course, a cloture vote does not always signify a filibuster.
A lot of these cloture votes we have had in the past--that is why I
talk in terms of true filibusters versus time management devices used
by the majority leader, whoever that may be. In some cases, our own
majority leader moved for cloture. So don't give me the argument that
this is not the first filibuster. This is the first filibuster, first
true filibuster of a circuit court of appeals nominee in history.
Now, no Republican has claimed that Lavenski Smith or Julia Smith
Gibbons were filibustered, but both of these Bush circuit nominees were
subjected to cloture votes last year. So that is just a phony argument.
Now, they have so much information on this man there is little or no
excuse for not proceeding to a vote. The problem is, they cannot find
anything wrong with him. There is so much that is right about Miguel
Estrada. And I just cannot quite see some of the arguments that have
been given.
Mr. President, how much time is left?
The PRESIDING OFFICER. The Senator has 3 minutes 30 seconds.
Mr. HATCH. Mr. President, I would like to be interrupted at the end
of 1 minute so I can give 2 minutes to the distinguished Senator from
Pennsylvania.
Let me say something about the memoranda that my Democratic
colleagues demand the White House release. These are appeal,
certiorari, and amicus recommendations that Mr. Estrada authored while
a career lawyer at the Justice Department. Let's be clear on that.
I keep hearing my Democratic colleagues say there is all this
precedent for the release of documents by the White House. Well, of
course, the White House releases documents to the Senate every day. But
they are not appeal, certiorari, and amicus recommendations, and there
is absolutely no precedent for the large-scale fishing expedition they
seek on Mr. Estrada--not any.
I agree with the seven former living Solicitors General, four of whom
are Democrats, who say that the White House is right not to release Mr.
Estrada's memoranda.
The PRESIDING OFFICER. The Senator from Utah has 2 minutes 30 seconds
remaining.
Mr. HATCH. Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I thank the chairman for yielding time to
me.
When you strip this argument down, it boils down to an effort by the
other side of the aisle to rewrite the advice and consent clause of the
Constitution. For more than 200 years, the President has had discretion
in the nomination of Federal judges. And unless there is some reason
not to confirm them, they then are confirmed.
Miguel Estrada has an extraordinary record, Phi Beta Kappa, Columbia;
magna cum laude, magna at Harvard, Harvard Law Review, 15 cases in the
Supreme Court. The issue of wanting to see some of his writings is a
red herring. The issue of wanting further amplification of his views on
the Constitution is another red herring. This is simply an effort, when
41 Members from the other side of the aisle decide to oppose cloture,
to continue this filibuster.
It is my view that we are not going to resolve this matter until we
have a real, live, honest to goodness filibuster, and that where the
other side of the aisle has to talk. We haven't had one since 1987. The
American people do not know what is going on inside the beltway and are
likely not to find out until this issue is raised in the conscious
level of the American people. Then I think we will find more than four
Members of the other side of the aisle joining 51 on this side of the
aisle to invoke cloture and to confirm this worthy nominee.
I do believe there is going to have to be some dramatic action taken
so that Americans understand the travesty going on in the Senate
Chamber today.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mrs. DOLE). The Senator from Vermont.
Mr. LEAHY. Madam President, as my statement indicated, the Senate did
have filibusters on Judge Stephen Breyer, Judge Rosemary Barkett, Judge
H. Lee Sarokin, Judge Richard Paez, and Judge Marsha Berzon, contrary
to the implication of my good friend from Utah.
I actually have sympathy for my friend from Utah. He has been put in
an untenable position. He is seeking to uphold an unreasonable position
taken by the White House. The White House is trying to tell the Senate
what to do. He is being a good soldier and I commend him for that.
The fact is, if the Senate was allowed to be the Senate and make its
own decisions and not let the White House dictate what to do, this
matter would have been settled a long time ago. We would have followed
the tradition and logic set forth by former Supreme Court Justice
Robert Jackson when he was Attorney General. He indicated that such
material should be provided to the Senate. He wrote:
. . . I have taken the position that committees called upon
to pass on the confirmation of persons recommended for
appointment by the Attorney General would be afforded
confidential access to any information that we have--because
no candidate's name is submitted without his knowledge and
the Department does not intend to submit the name of any
person whose entire history will not stand light.
The White House has access to Mr. Estrada's papers. It is hard to
believe that they have not reviewed these papers. They are part of the
information that the administration has about one of its nominees. All
previous administrations followed the path of working with the Senate
and making sure that the entire history of the person would stand the
light of scrutiny. This administration does not want us to know.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. REID. Madam President, Secretary Rumsfeld will be here at 2:30. I
spoke briefly to the manager of the bill, Senator Stevens. He indicated
to me he would have no problem with a recess. I checked with our
leader. He said he would have no problem with it either. During this
break, the two leaders will have to determine whether there is going to
be a recess for Secretary Rumsfeld. I wanted to say this to alert
Members that there may be a break after this vote to go listen to the
Secretary.
The PRESIDING OFFICER. All time is yielded back.
Under the previous order, the clerk will report the motion to invoke
cloture.
[[Page S4676]]
The senior assistant bill clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 21, the nomination of Miguel A. Estrada to be
United States Circuit Judge for the District of Columbia
Circuit:
Bill Frist, Orrin G. Hatch, John Ensign, Sam Brownback,
Jim Inhofe, Michael B. Enzi, Wayne Allard, Michael
Crapo, Susan M. Collins, Robert F. Bennett, Pete V.
Domenici, Conrad R. Burns, Kay Bailey Hutchison, John
E. Sununu, Norm Coleman, Charles E. Grassley.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Miguel A. Estrada, of Virginia, to be United States
Circuit Judge for the District of Columbia Circuit, shall be brought to
a close.
The yeas and nays are required under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry)
is necessary absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``no.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 55, nays 44, as follows:
[Rollcall Vote No. 114 Ex.]
YEAS--55
Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--1
Kerry
The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are
44. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
____________________